A citizen views the U.S. Constitution: A living document or historical relic?

Written by Patriot Staff

September 21, 2006

By Hillard Welch

This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

This series is written by a private citizen with an abiding interest in U.S. history and particularly its founding documents: The Declaration of Independence and the Constitution.

***

"The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution . . ."

(Art. V).

***

There has been a lot of talk in recent times of a "Living Constitution." Quite honestly, I had no idea that the present one was "dead" or out of date.

I've always kept the Constitution in the same reverence as the Bible, the former providing a lasting foundation for a government structure based on the "consent of the governed" while the latter provided an enduring foundation for an individual to lead a full and productive life.

However, let's take a look at what is really involved in this discussion.

From what I read, those who espouse a "Living Constitution" are generally interested in doing things that might otherwise be prohibited under the Constitution. For example, consider the Presidential Executive Orders or the Signing Statements attached to Congressional Bills. Nowhere in the Constitution is there authorization for either action. Yet, ignoring their Oath of Office innumerable times, many presidents have simply issued such Executive Orders or, more recently, attached Signing Statements to achieve their personal desires.

Or, what about the judicial decrees we have seen from our federal courts, including the Supreme Court? "Legislating from the bench" is the accepted term for this, but is that the function of a court or a judge?

Our Congress has seen fit to transfer the power to declare war to the President. He alone can determine if US forces should be sent into an armed conflict whether in Korea, Vietnam or Iraq. Yet, only Congress has the constitutional power to "declare war" (Art. I, Sec. 8 [11].

Is that their definition of a "Living Constitution?" Perhaps it should be relabeled, "Ignoring the Constitution."

Was Thomas Jefferson trying to warn us of such transgressions when he said, "Let us hear no more of confidence in men, but bind them down with chains of the Constitution."

What does this do to the integrity of our government's foundation or the "checks and balances" that the founders so carefully crafted and enshrined in the Constitution? Does this make it a "living" constitution?

To create an analogy, the Founding Fathers designed a government that resembles a three-legged stool with each leg representing one of the three branches. Having each leg (or branch) equal in terms of length (power) creates a stable structure (checks and balances) with the top (or seat) being the Constitution itself. Even a school child knows that if one of the legs is longer or shorter than the others, the stool is "tipsy" or not very stable. So it is with the US government. If one of the branches (legs) of the stool usurps or is given power from either of the other two, or encroaches on the domain and responsibilities in an attempt to become more powerful, it thereby reduces the power and effectiveness of the branch from which it is taken, and the stool or government becomes unstable.

This "lengthening of a leg" can also be accomplished by arbitrarily overtaking rights and powers that according to the Constitution belong to the states or the people respectively (Art. IX & X).

Consider, if you will, Rep. Henry Hyde's statement to a fellow congressman, "There are things in the Constitution that have been overtaken by events, by time. Declaration of war is one These things are no longer relevant to a modern society." His reference is to the bill Congress ultimately passed giving the President the sole authority to decide if the US should go to war with Iraq.

Or, Justice Sandra Day O'Connor's comment, to which her fellow justices Ginsburg and Breyer concurred, "I suspect that over time we will rely increasingly on international and foreign courts in examining domestic issues."

This is in stark contrast to the thought of James Madison, generally acknowledged as the primary author of the Constitution, which asserted (paraphrased) "that it was the glory of the American people, who having paid a decent regard for historical opinions and those of other nations, did not blindly accept them or allow them to overrule their own good sense or the knowledge of their own situation and the lessons of their own experience." In other words, the American people stood independent of "foreign entanglements or customs," preferring to base their decisions on their own knowledge and experience to satisfy the requirements of their own situation.

Is what those who promote a so-called "Living Constitution" really a desire to act "unrestrained," to make decisions on personal prejudice or to determine a course of action irrespective of the authority and responsibility granted them by the Constitution? This sounds like the path to a despotic government that is all-powerful of which the people are the subjects and not the source of power.

Under the US concept, "We, the people" are the ones with the power and the government is our servant, not our master. Are we straying so far from such a founding concept that we are slipping away gradually or being pushed into the position where the government "grants our rights" but does not "guarantee them" (as in the Constitution)?

If this is what makes for a "Living Constitution," then we will succumb to Benjamin Franklin's famous statement, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

The United States Constitution has always been a Living Document. It can be changed by Amendment (Art. V) when deemed appropriate and necessary. Not an easy process, it requires due deliberation, careful consideration and the approval of three-fourths of the state legislatures to become a part of the Constitution itself. The fact that in over 200 years, there have only been 27 Amendments, of which the first Ten constitute the famous "Bill of Rights," should establish beyond question the fundamental soundness and solidity of the basic structure created by the Constitution itself.